B. CHANDRA KUMAR, J.
ORDER:
1. Being aggrieved by the order dated 21-09-2011, passed in I.A. No.115 of 2011 in O.S. No.55 of 2005 on the file of Junior Civil Judge, Pathapatnam, Srikakulam District, the present Civil Revision Petition is filed.
2. The Petitioner herein is the first Defendant in O.S. No.55 of 2005, first Respondent herein is the Plaintiff and the Respondents Nos.2 to 4 herein are the Defendants Nos.2 to 4 in the said suit.
3. The brief facts of the case are as follows : The petitioner herein is the elder stepbrother of the first respondent-plaintiff. The petitioner herein, his mother and his elder sister filed O.S. No.87 of 1976 on the file of Principal Senior Civil Judge, Srikakulam against the first respondent herein and his elder sister for partition of the family land and the house property, the said suit was decreed. In the Appeal i.e. in A.S. No.163 of 1978, the District Court, allowed the Appeal in part and accordingly final decree was passed in I.A. No.450 of 1978 and in terms of the said final decree, the properties were partitioned and possession was delivered to each of the parties in E.P. No.61 of 1983, since then, the parties are in possession of their respective allotted shares. The first respondent herein filed O.S. No.55 of 2005 alleging that the petitioner herein has been attempting to trespass into the land allotted to him. The petitioner herein has admitted about passing of the decree in O.S. No.87 of 1976 and also about the execution proceedings, but his main version is that there was no actual delivery of the properties as per the proceedings in E.P. No.61 of 1983, though it was only a paper delivery. His main case is that after conclusion of the E.P. proceedings, the parties were not satisfied and the disputes were not ended, then both the parties approached the elders and as per the advice of the elders, the properties were again partitioned on 14-03-2004 and since then the petitioner herein is in possession and enjoyment of those properties.
4. The further case of the petitioner is that the settlement entered into before the elders was reduced into writing in the month of March, 2004 and signed by both the parties and attested by elders. It is also his case that the present case has been filed on the evil advice of one Guntamukkala Malati Rao of Chatlathandara village without any cause of action. In the above circumstances, the petitioner filed I.A. No.115 of 2011 under Order VIII Rule 3 C.P.C. To receive the document dated 14-03-2004 and mark the same as an exhibit on his behalf. His main case is that he could not file the said document when he was examined as it was misplaced and that the said document is highly essential for just determination of the case.
5. The first respondent-plaintiff opposed the marking of the said document. His case is that the parties have partitioned their properties long back and the first respondent-plaintiff is in possession and enjoyment of the plaint schedule properties and that the alleged partition deed, dated 14-03-2004 is forged one and created for the purpose of this case. It is also his case that the said document requires registration and it is not stamped, so it cannot be looked into.
6. The lower Court dismissed the said petition holding that the said document cannot be marked since it is neither stamped nor registered and the same is inadmissible in evidence for any purpose under Section 35 of the Indian Stamp Act, 1899 and also under Section 49 of the Registration Act, 1908.
7. Sri P. Raj Kumar, learned counsel for the petitioner, submits that the petitioner could not file the document when he was examined as the document was misplaced and that the document is necessary for the just conclusion of the case. It is also submitted that the petitioner filed the said document only for the purpose of proving his possession over the suit schedule property and not for the purpose of proving his title. It is also argued that since the suit is for bare injunction the lower Court ought to have allowed the application and received the document for collateral purpose to enable the petitioner to prove his possession.
8. The learned counsel for the petitioner has relied on the case between Khaja Habeebuddin Vs. Md. Ibrahim and others1 wherein, a suit for partition was filed in the year 2001, the defendants pleaded that there was prior partition way back in the year 1957, they filed the partition deed dated 15-07-1957 and an award dated 16-08-1957, it was held that the documents can be received in evidence for collateral purpose i.e. to show the severance of status and nothing more. For the same proposition he has relied on the case between Chinnappareddigari Pedda Muthyalareddy V. Chinnappareddigari Venkatareddy and others2. Reliance is also placed in the case between Roshan Singh and others V. Zile Singh and others3 wherein it was held that a mere agreement to divide does not require registration. He has also relied in the case between Smt. Kaheeda Moin and others Vs. Md. Iqbal Ali and others4 wherein it was held that unregistered partition deed can be admitted in evidence for collateral purpose for proving the factum of partition and nature of possession of the parties. He has also relied on the case between Amangenti Prameela and another Vs. P. Venkat Reddy by LRs and others5 wherein it was held that a Xerox copy can be admitted as secondary evidence. Reliance is also placed on the case between Pariti Suryakanthamma and another V. Saripalli Srinivasa Rao and another6 in support of his contention that an unregistered and unstamped document can be received in evidence for collateral purpose. For the same proposition, he has relied on the case between K.B. Saha and Sons Private Limited V. Development Consultant Limited7.
9. Sri G. Surapu Naidu, learned counsel for the first respondent-plaintiff submits that the suit in O.S. No.55 of 2005 filed by the first respondent was decreed long back and the parties were put in possession of the property in E.P. No. 61 of 1983 long back and since then the first respondent has been in possession of the same property. It is also his submission that the alleged document filed at a belated stage cannot be received unless valid reasons are shown for not producing the document along with the written statement, in support of which he has relied on the case between Voruganti Narayana Rao V. Bodla Rammurthy and others8 and also relied on the case between Pariti Suryakanthamma and another Vs. V. Saripalli Srinivasa Rao and another9 wherein it is held that when the purpose of filing of the document is not for any collateral purpose, the same cannot be received and when it is unstamped, the same cannot be received for main purpose under Section 35 of the Indian Stamp Act, 1899.
10. The simple case of the petitioner is that the alleged partition deed dated 14-03-2004 was misplaced and therefore he could not file the same along with his written statement. The case of the first respondent is that the document is forged, unregistered and unstamped one, which is inadmissible in evidence, therefore cannot be received. The facts are not in dispute. The petitioner herein filed the suit in O.S. No.87 of 1976 on the file of Principal Senior Civil Judge, Srikakulam and the said Suit was decreed and subsequently an Appeal was filed in A.S. No.163 of 1978 on the file of District Judge, Srikakulam and the said Appeal was allowed in part and a corresponding final decree was passed. It is also not in dispute that E.P. No.61 of 1983 was filed and in pursuance of the said E.P., the shares of the parties' were allotted to them and possession was delivered to them in terms of the final decree and the final decree proceedings came to an end.
11. Now the specific case of the petitioner is that though a final decree was passed and documents revealed that possession was delivered to the parties, but in fact, it was only on paper and no such delivery of property had taken place. It is also his case that subsequently petitioner and the first respondent have settled the matter before elders and accordingly partitioned their properties on 14-03-2004.
12. A reading of recitals of the document makes it clear that the parties have partitioned their properties on 14-03-2004 and that they have been enjoying the lands allotted to them with absolute rights, list of the properties allotted to each of the party have been mentioned in the said document. Thus, the document is a clear document of partition creating absolute rights and title in the properties allotted to the parties to the said document i.e. the petitioner and the first respondent herein.
13. Therefore, the question that arises is whether a document, which creates a right title in the properties allotted to the parties by virtue of a partition, can be admitted when it is unstamped and unregistered? Section 35 of the Indian Stamp Act, reads as follows : "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties, authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped". In view of the bar as referred in Section 35 of the Indian Stamp Act stated supra, it is clear that the disputed document becomes inadmissible in evidence for any purpose. Section 2 (15) of the Indian Stamp Act defines 'instrument of partition' as follows : "'Instrument of Partition' means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue authority or any civil Court and an award by an Arbitrator directing a partition (and a memorandum regarding past partition)". Section 17 of the Registration Act reads as follows : "Documents of which registration is compulsory -(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. 1864 (XVI of 1864), or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely :--
(a) instruments of gift of immovable property;
(b) other non- testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) 1[non- testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub- section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees". Section 49 of the Registration Act reads as follows : "Effect of non-registration of documents required to be registered : No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall - affect any immovable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
14. As per the decision of Khaja Habeebuddin (1st supra), relied upon by learned counsel for the petitioner, the facts of the said case are that the defendant in the said case had taken a plea that there was a prior partition way back in the year 1957 and he filed a partition deed dated 15-07-1957 and an award dated 16-08-1957. When the admissibility of the said document came up for consideration, this Court held that the document in question did provide for extent of shares of various individuals. This fact can be brought in evidence only through a registered document. Therefore, the documents in question are inadmissible to establish the factum of partition of the property by mets and bounds. It was further observed that as far as the severance of status and nature of possession of the various sharers are concerned; the document could be received for the collateral purpose of severance of status and nothing more.
15. Reliance is also placed on the decision of Chinnappareddigari Pedda Muthyalareddy (2nd supra), wherein the Full Bench of this Court has elaborately dealt with the issue of admissibility of an unregistered document i.e. three lists were prepared, when the parties prepared lists to denote the properties which have fallen to the share of each in the partition which was effected about a fortnight, before this the partition had already taken place and after about a fortnight three lists were prepared and each party was given one list showing the property which had been fallen to their respective shares. This Court held as follows : "Where a partition takes place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked for the terms of the partition. It is in fact the source of title to the property held by each of the erstwhile coparceners. That document, though unregistered, can however, be looked into for the purpose of establishing severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family who from thence onwards, hold it as co-tenants. It was also observed that for severance in status, all that is required is a communication to the other members of the joint family, of an unequivocal intention to separate and this communication of intention could be done orally or by a notice in writing to the other coparceners or by other means depending upon the facts and circumstances of the case and if the intention is expressed by reducing the same to writing such a document, though unregistered, is admissible and can be looked into, as long as it is not the source of any title of the properties which each of the erstwhile coparceners hold as a result of that partition".
16. Reliance is placed on the decision of Reliance Singh (3rd supra) wherein it was held that mere agreement to divide does not require registration but if the writing itself effects a division, it must be registered.
17. Reliance is placed on the decision of Smt. Kaheeda Moin (4th supra wherein the plaintiffs contended that the suit property was jointly purchased under registered sale deed and all of them continued to be in joint possession and enjoyment of the said property that subsequently there was a partition of the properties effected on 17-02-1983 in the presence of elders and that in the said partition the suit properties fell to their shares. They filed the suit for declaration of title and for recovery of possession, objection was raised for marking of the said document on the ground that it is an unregistered partition deed. Holding that it is clearly mentioned therein that the partition of the properties between the parties was effected and thus the properties were allotted to their respective sharers and when the parties had taken possession of their respective shares on the date of the document itself and in view of the clear terms and conditions of the disputed document, the said document since created and declared the rights of the respective parties, it is compulsorily registrable under Section 17 of the Registration Act. It was further held that the document can be admitted in evidence for the limited purpose of proving the factum of partition and nature of possession of the parties.
18. Reliance is also placed in the decision of Amangenti Prameela (5th supra) wherein the suit for partition and separate possession was filed when the first defendant was being cross-examined, it was elicited through him that a partition took place among various members of the family on 12-01-1980 and two sets of documents were executed evidencing the said partition. It was also elicited from him that one of the documents was kept with him and the other with one Mr. Pratap Reddy. Then the petitioners got issued a notice to DW.1 calling upon to produce original document, dated 12-01-1980 before the Court and there was no representation from him. Then the petitioners secured Xerox copy of the said document and filed the same. Then this Court held that Xerox copies can be received as secondary evidence under Section 65 (a) of the Evidence Act. This Court observed that the petitioners are not responsible for not impounding the document and it can be received for collateral purpose as held in the decision cited 4th supra.
19. Reliance is also placed on the decision of Pariti Suryakanthamma (6th supra) wherein the petitioners in that case filed a suit for declaration of title and for permanent injunction. The defendants wanted to mark the partition list contending that the said document is only a partition list and not a partition deed and therefore does not require any stamp duty or registration. This Court taking into consideration the definition of 'instrument of partition' under Section 2 (15) of the Indian Stamp Act and Section 35 of the Stamp Act held that the document cannot be received in evidence since the main purpose was to prove the alleged title to the suit property.
20. Reliance is also placed on the decision of K.B. Saha and sons (7th supra) wherein the alleged memo dated 30-03-1976 was in dispute as per the terms of the said memo, the existing tenant had no right to allot the suit premises to another employee after it was vacated by the tenant. M/s. K.B. Saha and Sons Private Ltd., was the owner of the premises which was leased out to M/s. Development Consultants Limited for the residential accommodation of a particular officer, Mr. Keshab Das and after the said Officer vacated the suit premises, the respondent wanted to allot the same to another employee, for which the appellant objected; whether an un-registered document was admissible or not was the question that came up for consideration therein. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to affect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
21. In the decision reported in Smt. Krishnabai Bhritar Ganpatrao Deshmukh Vs. Appasaheb Tulja Rama Rao Nimbalkar and others10, it is observed as follows : "A coparcenary is purely a creature of Hindu Law; it cannot be created, or re-created after disruption, by the act of parties, save insofar that by adoption a stranger may be introduced as a member thereof, or in the case of reunion". Thus the well settled legal position is that once there is a disruption of joint family and partition has taken place and parties have allotted separate shares, coparcenary cannot subsequently created. A coparcenary as observed by the Apex Court, is purely a creature of Hindu law and it cannot be subsequently created by any agreement or settlement between the parties.
22. As seen from the facts of this case, the facts and circumstances of this case are peculiar. It is not in dispute that the petitioner himself had earlier filed O.S. No. 87 of 1976 and the said suit was decreed and properties were partitioned and delivery of possession was affected in E.P. No.61 of 1983 in pursuance of the final decree passed in the said suit. The case of the respondent is that the parties have been enjoying their respective allotted shares since the date of delivery of possession to them as per the partition. The specific case of the petitioner is that though the Execution Proceedings reveal that the possession has been delivered but it was only on paper and no actual delivery had taken place and that the parties subsequently approached the elders and as per the advise of the elders the properties have again partitioned on 14-03-2004. The petitioner herein though referred to the said partition deed but did not specifically give the date of that partition date in his written statement when he was examined as DW.1. He deposed that in the year 2004 the elders of the village advised him and others and allotted shares but not in accordance with the final decree. He further submitted that prior to 2004 the elders never interfered and never allotted the shares to them. He further admitted that he cannot say the day and month when the said partition had taken place. He further admitted no document was reduced into writing at the time of partition. He further admitted the details of the alleged partition deed were not mentioned in his pleadings. He further admitted that he did not state in his chief-affidavit that 25 cents of Item No.3 was allotted to the plaintiff by the elders.
23. It may not be appropriate to comment on the merits of the case basing upon the past evidence, but one thing is sure if the parties are allowed to deny the Court proceedings particularly allotment of respective shares as per the final decree proceedings in execution proceedings or execution of any decree, there will be no end to the litigation; that too after a period of more than 22 years as occurred in this case. The parties approached the Court and after a long litigation they obtained decree and the fruits of the decree would be available to them only after it is successfully executed and possession has been delivered. Normally, the parties do not enter into any settlement contra to a decree passed in their favour. Parties may settle the disputes during the pendency of the proceedings but it would be most unnatural and most improbable to say that after the shares have been allotted in Execution Proceedings and possession has been handed over, the parties again sat together and repartitioned the properties that too under an unregistered, unstamped partition deed creating right in the properties allotted to them. Rights and title cannot be transferred to any other party except by way of a registered document. No right in any immovable property which is of worth more than 100 rupees can be neither created nor extinguished except through a registered document and the document must be scribed on the required stamp paper otherwise, the very purpose of the relevant provisions of the Registration Act, Stamp Duty will be defeated.
24. As discussed above, the document sought to be filed is nothing but a partition deed creating right and title in the lands said to have been allotted to the parties. It is settled law that registration of document which is to be required under Section 17 (1) (b) of the Registration Act makes the document inadmissible in evidence. Under Section 49 (c) of the Registration Act, no document required by Section 17 to be registered shall be received as evidence of any transaction affecting the said property unless it has been registered. Of course the proviso says that an unregistered document affecting immovable property and required to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of section 53-A of the Transfer of Property Act or as evidence of any collateral transaction not required to be affected by registration of instrument.
25. The A.P. Amendment Act 17 of 1986 came into force with effect from 16-08-1986 and definition of 'instrument of partition' under Section 2 (15) of the Indian Stamp Act has been amended. As referred in the above paragraphs even a memo recording past partition is also brought within the definition of 'instrument of partition' by virtue of the said amendment. Thus, the argument that a document is merely a record of family arrangement, settlement or acknowledgment of prior partition and admissible for collateral purpose is no more available after the above amended provisions of Indian Stamp Act came into force. Section 35 of the Indian Stamp Act is very clear and creates a clear bar and therefore unstamped document is inadmissible in evidence for any purpose. Admittedly the alleged document i.e. partition deed is chargeable with duty. In view of the settled legal position i.e. the bar engrafted under Section 35 of the Indian Stamp Act is an absolute bar and therefore the document cannot be used for any purpose unlike the bar contained in Section 49 of the Registration Act.
26. Now it is argued that the petitioner was ready and even prepared to pay the deficit stamp duty to take the said document into consideration; whenever any unstamped document is sought to be admitted on the same day, when it is filed before the Court, the parties file such document and take steps to pay the stamp duty or the deficit stamp duty but not at a subsequent stage when the issue of admission of that document comes or when it is objected by the other side. Collateral purpose means not for the purpose of proving the partition or allotment of shares or creating of any right. For example, in a case the Parties have partitioned their properties in 07-01-1953 and after some time they prepared the lists of properties allotted to the parties or prepared a memo of family arrangement and a suit for partition is filed in the year 1960 and the party who leads that partition had taken place on 07-01-1953 proves his possession by filing documentary evidence that he has been in exclusive possession of the properties allotted to him and that there was a severance of joint family and his status is no more as a member of Joint Hindu family and his status has changed. Then in such circumstances only for the purpose of proving that his possession commenced from 1953 on wards or that his status is not as a member of joint Hindu Family, for that purposes a family arrangement which was reduced into writing as the lists prepared alone amounts after the actual date of partition could be received for collateral purpose. If the said document cannot be proved to show that the partition had taken place on 07-01-1953 or that the properties were allotted to those parties in pursuance of the said partition on 07-01-1953, thus it is clear that a document for the purpose of proving the terms of such document cannot be admitted in evidence. Thus the document cannot be received to say that it created or declared assigned or limited or extinguished a right to immovable properties. The term collateral purpose would not permit the parties to establish any of these facts from the deed. In the name of collateral purpose, no document can be received nor any right said to have been created, declared or assigned or limited or extinguished can be inferred from such document.
27. It is our experience that though document is received or marked for collateral purpose but when it is before the Court and at the time of appreciating the evidence, many Courts are not taking into consideration for what purpose the said document could be considered. In view of the above discussions, I hold that there no merits in the Revision and accordingly, the Civil Revision Petition is dismissed. No order as to costs. However, it is made clear that the lower Court without being influenced by any of the observations made supra, may appreciate the evidence in proper perspective and dispose of the suit. Before parting with this judgement, it is necessary to caution the parties not to sign on blank papers or on stamped papers under any circumstances, may be while obtaining private loans or loans from chit fund companies, money lenders or even from Banks because our experience shows that there are several instances where innocent persons who signed on white papers or on stamped papers, on blank receipts or blank pronotes and blank cheques etc., while taking loans have been subsequently cheated. It is also desirable to mention that the learned Advocates who are dealing with the noble profession should instruct their clerks and parties to see that signatures or thumb impressions of parties are not obtained on any blank papers or stamped papers because the risk of the same being misused by any unscrupulous persons or by any person in future cannot be ruled out. Since the files cannot be with the same Advocate always and they will be moving into the hands of several others persons. Therefore, whenever unstamped papers and unregistered documents are presented before the Court, the Court must examine the same cautiously and should not admit them in a routine manner in the name of using them for collateral purpose.